Paul Murphy on secret 20m mast at Kingswood and section 254

The first thing is I do not have a problem and the residents do not have a problem with masts in and of themselves, of course not, they are part of public infrastructure today, we need them in terms of mobile phones and so on, but what people have a problem with is waking up one morning and finding that significant work is happening at the entrance to our estate, they have now created a two metre high platform upon which a 20 metre high mast is going to go all deliberately without a shred of public consultation, that is the abuse that is happening currently of the section 254 of the Planning and Development Act, that is a section that is really intended for things like advertising structures, a vending machine, tables and chairs, outside restaurants and so on, and it is being used in now hundreds of cases across the country by signal or cell necks to put up huge, huge big masts without any consultation, without any notice to people, and it is actually reported in the Irish Examiner that in the current draft of the new planning bill, that the right of people to even appeal to onboard Planola would be taken away, so I would be interested in the response of the Minister to that, whether that is the case, but what has emerged now in relation to Kingswood is that a very good appeal has been put into onboard Planola, that is the only route you have, you cannot go to the Council, you cannot put in submissions, you cannot put in objections, all you cannot put in submissions, you cannot put in objections, all you can do is go to onboard Planola, an excellent appeal has gone into onboard Planola on the grounds of location choice, on the grounds of procedures, on the grounds of circular economy, and now what the mask company, Cellnex, are saying is that we have the legal right to proceed, even though there is an appeal to live with onboard Planola, which is entirely different to how all the rest of the planning process would operate, I have a response from South Dublin County Council to Charlie O'Connor, where the Council says it is basically unclear, section 254 is unclear as to whether works granted can be commenced, so the works continuing, they are planning to put this massive mast in, in July, without any consultation, with an appeal still pending in onboard Planola, it makes no sense whatsoever. The fundamental point I would make is that part of this madness is that this mast is going to be three. The mast we had a couple of years ago that the residents successfully won a judicial review about, that was going to be Aircon, so these different private companies competing with each other as opposed to an open public consultation, an agreement with the community, where will this mast go to serve the entire community? OK. Minister? Thank you. Thank you. Thank you for your indulgence. I have two responses. Both overlap, so I am trying to condense both of them together, and I beg the deputies indulgence and thank the deputies Murphy and La Harte for raising the issues. In regard to the topical issues before the House tonight, including 5D Digital Mess, there are two procedures in place, depending on where the telecommunications infrastructure is to be located. In the first scenario where a developer proposes to place overgrown telecoms equipment such as a telecoms mast on or along a public road, they are required to obtain a licence from the relevant planning authority under section 254 of the Planning and Development Act as amended of 2000. Section 254 provides a licensing system for appliances and structures that are placed on, above or under or along a public road, including footpaths. Section 254 provisions may not be utilised in respect of any locations other than public roads and footpaths. A person applying for a licence under section 254 must provide the Planning Authority with such plans and other information concerning the position, design and capacity of the appliance apparatus or structure, as the authority may require. Considering an application for a licence under section 254 of the Act, a Planning Authority is required to have regard to proper planning and sustainability, proper and sustainable development of the area, the local development plan, the number and location of existing appliances in the vicinity, as well as the convenience and safety of the road users, including any pedestrians. Section 254, a licence may be granted by the Planning Authority for such period and upon such conditions, as may be specified, including conditions in relation to the location design, space taken up by the appliance and the need to protect the structures. In the second scenario, where a developer cannot avail of a planning exemption and wishes to install a telecoms infrastructure at a location other than under a public road footpath, the developer must apply for planning permission for the proposed development to the relevant Planning Authority in the normal matter under section 34 of the Act. The Planning Authority is required to consider each application on a case-by-case basis, with the process including a five-week period for the public to make submissions or observations under the proposal. The Planning Authority shall make its decision within eight weeks. Under section 254, section 6 of the Act, section 254 licences may be appealed to the Board of Planala at any time, while in the case of a planning application under section 34 of the Act, the Planning Authority may be appealed to the Board within four weeks. Where such an appeal is made, any member of the public may make submissions or observations in writing to the Board in relation to the appeal within four weeks of making the appeal. A decision of the Board on an appeal may subsequently be subject to judicial review challenge in accordance with sections 50, 50A and 50B of the Act, with the challenge being required to be made within eight weeks of the decision of the Board. Where a person does not comply with the conditions of that any licence is issued or permissions granted or any court orders following a judicial review, they may be subject to enforcement proceeding by relevant Planning Authority in accordance with part eight of the Act. With your indulgence in relation to the second part, the Deputy's question this evening refers to two telecoms masks in the Talley area of the Dublin South West constituency. One is currently the subject of an appeal to the Board, while the second one is currently the subject of an ongoing judicial review challenge in the High Court. In this regard, I must state at the outset that in accordance with section 30 of the Planning and Development Act as amended by the Act, the Minister with responsibility for planning is precluded from exercising any power or control in relation to any individual planning case with which a planning authority or the Board is or may be concerned. This is a fundamental principle of the planning system in order to ensure that it operates without political influence or interference in speaking. On behalf of the Minister and the Government, I too must adhere to these principles. With regard to the second case, which is the subject of an ongoing judicial review, I am sure that the Deputies will accept that all parties involved are entitled to the due process and it will be inappropriate to comment on ongoing legal proceedings, which are a matter for the courts. On behalf of my colleague, Minister O'Brien and Minister of State O'Donnell, I will briefly refer to the generalities but cannot discuss any specific details. In general terms, where licence is granted by planning authority for over-ground telecom infrastructure, such as that in accordance with section 254 of the Act, this may be appealed to the Board and the other elements with regard to the imposition of that and its clarity in the law, I have already outlined to the House. Thank you for the response. Unfortunately, it did not answer the questions, so we are going to go again. Is it the case that where on Board Planolla is considering an appeal, does the company have to stop or can it continue? It is a very simple question. In the response here, I am not sure if the Minister read it out or not, I do not think so. To me, it says, with regard to the case which is the subject of an ongoing appeal to the Board, the Board must be allowed to complete its determination of the appeal without interference. I presume that actually building the mast is interference in the sense that before the Board has the chance to hear it, the mast will be up. That was the case in terms of another mast, because the Minister referred to the other mast that we were dealing with that went up over two years ago. Yes, it is a subject of a judicial review before the High Court, but to all intents and purposes that has been successfully won by the residents. Board Planolla has said they are instructed not to defend the judicial review. The company has agreed to take the mast down. That has national significance, that decision, because I think it has serious implications for all of these masks allowed up under section 254 across the country. But that is still there. So if Celnex get away with putting up the current mast, even when a process of appeal is underway on Board Planolla, does that not constitute interference with that process? The final point I make is, does the Minister accept, and I presume it is happening in your own constituency, because it is happening all across the country, this is a big issue, that there is a fundamental problem. That section 254 is being used to avoid public consultation, but even less than that, to avoid any site notices, public notices, making people aware of what is going to happen in their community. Surely people have the right to have consultation, to be informed about things and have an input into where it goes. Does the Government agree that section 254 needs to be very seriously amended, so we have a proper planning process around it? To conclude, please. Thank you. To reiterate again, to go back to Deputy LeHeart's point and Deputy Brophy's point as well, I will restate it. A person applying for a licence under section 254 of the Act must provide a planning authority with such plans and other information concerning the position, design and capacity of the appliance apparatus or structure, as the authority may require I am not getting into the ins and outs of a particular planning application, because I am precluded for doing it in this House, but I am sure deputies will know themselves, as they have been members of local authorities, that there is a mechanism in which that can be checked within each and every local authority. To take up Deputy Murphy's point where I stopped because I ran out of time, with regard to the case that is subject of an ongoing appeal to the Board, the Board must be allowed to complete its determination of the appeal without interference. With regard to the case that is subject of an ongoing judicial review process, the Court must also be allowed to issue the final judgment. Further to the processes that are currently underway, these cases may later be subject of enforcement proceeding by the relevant planning authority in accordance with Part 8 of the Act. Should these circumstances arise, there will be a matter for the relevant planning authority concerned. The role of the Minister with responsibility for the planning is mainly to provide an update in the legislative and policy guidance framework. Going back to Deputy Brophy's point with regard to amending an upcoming legislation, I have made note of the points that is made, and I asked Minister O'Donnell to revert to it directly. The legislative framework comprises the Planning and Development Act of 2000, as amended by the Associated Regulations of 2001. It is a matter for the relevant planning authority, the Board and the courts, to consider each case before them individually on a case-by-case basis. The planning system provides a balanced and proportionate approach in relation to the provision of telecom infrastructure, and the Planning Act provides that decisions of planning authority for both section 254 licences and for planning applications to be appealed to the Board, and in turn for decisions of the Board to be subjected to judicial review. As the Minister has outlined in his response, which I provided to the Dáil, I am unable to comment on the specifics of any individual case. An ongoing appeal to the Board or judicial review must be let run their course, where breaches of the Planning Code do occur, including proceeding with the installation of a telecom's mask prior to the conclusion of the statutory planning process. There are enforcement powers available to the relevant planning authorities under the Planning and Development Act to address any issues as they arise. Thank you.